Domestic regulation of international humanitarian relief in disasters and armed conflict: A comparative analysis

International Review of the Red Cross

Volumn 89, Issue 866, 2007, Pages 345-372

  Fisher, David ^a  

^a International Federation of Red Cross and Red Cross Societies   (United States)

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EID: 84953709320     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383107001117     Document Type: Article

References (152)

1. See the discussion below concerning references to refugee and displaced children in the Convention on the Rights of the Children and the African Charter on the Rights and Welfare of the Child. There are also a number of references to international relief in expert-produced “soft-law” documents. See, e.g., Council of the International Institute of Humanitarian Law, Guiding Principles on the Right to Humanitarian Assistance (April 1993);
2. Institute of International Law, Resolution of the Institute of International Law on Humanitarian Assistance (Bruges Session 2003)
3. See, e.g., Yoram Dinstein, “The right to humanitarian assistance in peacetime”, Naval War College Review, Vol. 53 (Autumn 2000), p. 77 (stating that “[i]t is impossible to assert, at the present point, that a general right of humanitarian assistance has actually crystallized in positive international law.”);
4. Peter MacAlister-Smith, “The right to humanitarian assistance in international law”, Revue de Droit International de Sciences Diplomatiques et Politiques, Vol. 66 (1988), pp. 224–5 (asserting that “[a] legal right to humanitarian assistance already exists in certain restricted circumstances… [h]owever, extending the right to humanitarian assistance to the situations of greatest need is a difficult task which remains to be achieved”).
5. Revue de Droit International de Sciences Diplomatiques et Politiques., para. 19.
6. Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (hereinafter Fourth Geneva Convention). As noted below, these requirements apply to all contracting parties, and the last condition refers to guarding against misuse “by the Occupying Power”. However, it is reasonable to assume, as the ICRC's Commentary on this section does, that the point is to guard against misuse by all belligerents. See Jean S. Pictet (ed.), Commentary, IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, 1958 (hereinafter ICRC GC IV Commentary), pp. 322–323.
7. See Yves Sandoz et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, 1987 (hereinafter ICRC AP Commentary), pp. 820 and 1479;
8. Michel Bothe, “Relief actions: the position of the recipient state”, in Encyclopaedia of Public International Law, Vol. 4, Max Planck Institute for Comparative Public Law and International Law, 1982, pp. 92–93;
9. Ruth Stoffels, “Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps”, International Review of the Red Cross, vol. 86 (September 2004), p. 522;
10. Joakim Dungel, “A right to humanitarian assistance in internal armed conflicts respecting sovereignty, neutrality and legitimacy: practical proposals to practical problems”, Journal of Humanitarian Assistance, May 2004, s. 2.3.1.1.
11. See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules, International Committee of the Red Cross, 2005 (hereinafter ICRC Customary Law Study), pp. 193, 196–7.
12. Customary International Humanitarian Law, Volume I: Rules., p. 198;
13. see also Stoffels, above note 19, pp. 521–2 and n.16. A representative example is Security Council Resolution 1460, UN Doc. S/RES/1460 (2005) on children in armed conflict, which “underlin[ed] the importance of the full, safe and unhindered access of humanitarian personnel and goods and the delivery of humanitarian assistance to all children affected by armed conflict”.
14. See, e.g., David Forsythe, “Human rights and humanitarian operations: theoretical observations”, in Eric Belgrad and Nitza Nachmas (eds.), The Politics of International Humanitarian Aid Operations, Praeger, 1997, p. 45.
15. See ICRC GC IV Commentary, above note 17, p.181 (explaining that this provision “applies to all such consignments, when they are intended for the civilian population of another contracting party, whether that party is an enemy, allied, associated or neutral State”).
16. See ICRC GC IV Commentary., Article 59.
17. See First Additional Protocol, Article 81(1).
18. See First Additional Protocol., Article 81(3).
19. See ICRC GC IV Commentary, above note 17, p. 328.
20. See, e.g., Fourth Geneva Convention, Article 23; First Additional Protocol, Articles 70(2), 81(2)-(4); ICRC Customary Law Study, above note 20, pp. 198–199.
21. See ICRC AP Commentary, above note 19, p. 1480.
22. See ICRC Customary Law Study, above note 20, pp. 193 and 200.
23. See, e.g., UN Security Council Resolution 1261, UN Doc. No. S/RES/1261, para. 11 (1999);
24. see also ICRC Customary Law Study, above note 20, pp. 195–6 and nn.70–3 (citing over two dozen other such resolutions).
25. Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150 (hereinafter 1951 Refugee Convention), Article 1.
26. Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 UNTS 45 (hereinafter African Refugee Convention’), Article1.
27. Cartagena Declaration on Refugees, 22 November 1984, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10 (1984–5) (hereinafter Cartagena Declaration’), rev. 1, at 190–193.
28. See Convention Relating to the Status of Refugees, July 28, 1951, Article 8, 189 UNTS 150; Cartagena Declaration on Refugees, Annual Report of the Inter-American Commission on Human Rights, OAS Doc. OEA/Ser.L/V/II.66/doc.10 (1984–1985), rev. 1, pp. 190–3, para. (e).
29. See Guiding Principles on Internal Displacement, UN Doc. No. E/CN.4/1998/53/Add.2 (1998).
30. See Guiding Principles on Internal Displacement., at Principles 3 and 25.
31. See generally Victoria Bannon, “Strengthening disaster response laws, rules and principles: overview of the current system and a new way forward”, in C. Raj Kumar and D. K. Srivastava (eds.), Tsunami and Disaster Management: Law and Governance, 2006.
32. See International Convention on the Simplification and Harmonization of Customs Procedures, May 18, 1973, T.I.A.S. 6633 (1973), and its 1999 Protocol of Amendment, available at http://www.ifrc.org/ what/disasters/idrl/publication.asp (last visited 3 July 2007), annex J.5.
33. See, e.g., Convention on the Transboundary Effects of Industrial Accidents, 17 March 1992, 2105 UNTS 460.
34. Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, September 26, 1986, 1457 UNTS 134 (hereinafter Nuclear Assistance Convention).
35. See Revised International Health Regulations, 58th World Health Assembly, Doc. No. WHA58.3 (2005), Agenda Item 13.1.
36. See Framework Convention on Civil Defense Assistance, 22 May 2000, available at http://www.ifrc.org/ what/disasters/idrl/publication.asp (last visited 3 July 2007).
37. See Food Aid Convention, 13 April 1999, available at http://untreaty.un.org/english/notpubl/ notpubl.asp (last visited 3 July 2007).
38. See, e.g., Convention on Facilitation of International Maritime Traffic, April 9, 1965, 591 UNTS 265, annex 1, ss. 5.11–5.12; Annex 9 to the Convention on International Civil Aviation, December 7, 1944, s. 8.8, repr. in International Civil Aviation Organization, International Standards and Recommended Practices: Facilitation - Annex 9 to the Convention on International Civil Aviation (12th edn, 2005).
39. See, e.g., Charter On Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters (2000), available at http://www.disasterscharter.org/charter_e.html (last visited 3 July 2007).
40. See Tampere Convention, above note 44.
41. See Horst Fischer, “International disaster response law treaties: trends, patters and lacunae”, in Victoria Bannon (ed.), International Disaster Response Laws, Principles and Practice: Reflections, Prospects and Challenges, International Federation of Red Cross and Red Crescent Societies, 2003, p. 29. The International Federation of Red Cross and Red Crescent Societies has produced an online database of several hundred of these instruments, available at http://www.ifrc.org/idrl (last visited 3 July 2007).
42. See, e.g., Henri Astier, “Can aid do more harm than good?”, BBC News, 1 February 2006, available at http://news.bbc.co.uk/2/hi/africa/4185550.stm (last visited 3 July 2007). On the other hand, there are many disasters where international assistance is greatly needed and urgently requested but little help has been forthcoming.
43. See generally, International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2006: Focus on neglected crises, 2006.
44. See, e.g. International Federation of Red Cross and Red Crescent Societies, Fiji: Laws, Policies Planning and Practices on International Disaster Response, 2005, p. 30 (“It was noted that foreign organizations providing disaster assistance in Fiji had experienced delays in obtaining entry permission and visas for relief personnel. The systems were considered to be ad hoc and inconsistent. The length of time taken to request external assistance by the Fiji Government also resulted in delays for sending relief personnel into the country and to the affected area”);
45. Turkish Red Crescent Society, International Disaster Response Law: 1999 Marmara Earthquake Case Study, 2006, p. 38 (hereinafter Turkish Red Crescent Study) (“Turkey did not make any appeals during the acute stage (which should be made through the Ministry of Foreign Affairs with the Decree of the Cabinet) (the appeal was made 2–3 days later). During this period, international relief was unable to be provided”).
46. See Lydia Polgreen, “Red tape imperils humanitarian efforts in Darfur”, International Herald Tribune, 27 March 2007;
47. Opheera McDoom, “UN warns Darfur's aid operation may collapse”, Reuters, 17 January 2007. A 2006 “fact sheet” on this issue by the Office for the Co-ordination of Humanitarian Affairs (OCHA) found that “[t]he visas regime for NGOs operating in Sudan is unclear, complicated and lengthy”, noting that the government had required multiple renewals of stay visas at a cost of US$240 per person. OCHA, Fact Sheet on Access Restrictions in Darfur and Other Areas of Sudan (20 April 2006), available at http://ochaonline.un.org/GetBin.asp?DocID54494 (last visited 3 July 2007).
48. See Mission Report of Catherine Bertini, Personal Humanitarian Envoy of the Secretary-General, 11–19 August 2002, para. 76, available at http://www.reliefweb.int/library/documents/2002/un-opt-19aug.pdf (last visited 3 July 2007).
49. See International Federation of Red Cross and Red Crescent Societies, Legal Issues in the International Response to the Tsunami in Thailand, 2006, available at http://www.ifrc.org/idrl (last visited 3 July 2007) (hereinafter IFRC Thailand Report), pp. 15–16;
50. International Federation of Red Cross and Red Crescent Societies, Legal Issues in the International Response to the Tsunami in Indonesia (publication pending) (hereinafter IFRC Indonesia Report), p. 15.
51. See International Federation of Red Cross and Red Crescent Societies, Legal issues in the international response to the tsunami in Sri Lanka, 2006 (hereinafter IFRC Sri Lanka Report), p. 17;
52. IFRC Indonesia Report, above note 67, pp. 21–22.
53. See IFRC Sri Lanka Report, above note 68, p. 24.
54. See “Food aid held for taxes to be released, says gov't official”, IRIN (16 August 2005).
55. See Turkish Red Crescent Study, above note 61, p. 34.
56. See Refugees International, “Kosovo: Shortfalls and difficulties in food aid delivery”, 9 December 1998.
57. See Médecins sans Frontières press release, “Doctors without borders calls for immediate and unconditional access to Kosovar refugees in no man's land on Macedonian border”, April 5 1999.
58. See “Angolan food aid “sits untouched”,” BBC News, 4 March 2004;
59. “Angola: government bureaucracy delays WFP food aid”, IRIN, 4 March 2004.
60. Report of the Secretary-General to the Security Council on the Sudan, UN Doc. S/2006/728 (2006), para 28.
61. See Arjun Katoch, “The responders' cauldron: the uniqueness of international disaster response”, Journal of International Affairs, Vol. 59 (Spring/Summer 2006), pp. 157–8 (2006);
62. John Telford and John Cosgrave, Joint Evaluation of the International Response to the Indian Ocean Tsunami: Synthesis Report, Tsunami Evaluation Coalition, 2006 (hereinafter TEC Synthesis Report), pp. 55–60.
63. See Feinstein International Famine Center, “Ambiguity and change: humanitarian NGOs prepare for the future”, 2004, pp. 70–71.
64. See Fourth Geneva Convention, Articles 23 and 59.
65. Fourth Geneva Convention., Article 61.
66. Fourth Geneva Convention., Article 61.
67. The ICRC Commentary, argues for a restrictive reading of the limitation clause concerning the “interests of the economy”, asserting that “belligerents should endeavour to regard it as absolutely exceptional, since to grant absolute exemption from all charges is really the only way of acting in the true spirit of relief actions and, in the great majority of cases, is in the real interests of the countries to which relief is sent”. ICRC GC IV Commentary, above note 17, p. 327.
68. First Additional Protocol, Article 70(2).
69. See Fischer, above note 56, p. 36.
70. See, e.g., Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15.
71. For example, in Somalia severe floods and droughts have coincided with renewed outbreaks of conflict over the last several years. See International Committee of the Red Cross, Annual Report 2006, May 2007, p. 128.
72. In the ongoing environment of lawlessness, banditry and piracy have greatly hampered efforts to bring food and other relief to affected persons. See, e.g., World Food Programme press release, “New pirate attack on aid ship: WFP urges high-level international action against Somali piracy”, 21 May 2007;
73. “Food shortages worsen as piracy slows aid delivery”, IRIN, 6 December 2005.
74. See Jim Gomez, “Indonesia requires aid escorts”, Deseret News, 13 January 2005;
75. Human Rights Watch, “Open letter to President Susilo Bambang Yudhoyono”, 6 January 2005.
76. See International Crisis Group, “Myanmar: new threats to humanitarian aid”, 8 December 2006, p. 9.
77. See Office for the Co-ordination of Humanitarian Affairs, “UN system response to the IDP situation in Uganda and recommendations for enhanced support to the national and local authorities, a mission report of the Internal Displacement Unit”, August 2003, p. 3;
78. Internal Displacement Monitoring Centre, “NGOs that access some of the camps without escort place themselves at considerable risk”, August 2003, available at www.internal-displacement.org (last visited 3 July 2007).
79. See International Federation of Red Cross and Red Crescent Societies, Legal Issues from the International Response to Tropical Storm Stan in Guatemala, 2007, p. 35.
80. Ryan Beasley et al., In the Line of Fire: Surveying the Perceptions of Humanitarian and Development Personnel of the Impacts of Small Arms and Light Weapons, Centre for Humanitarian Dialogue and Small Arms Survey, 2003, p. 52.
81. Fourth Geneva Convention, Article 59.
82. First Additional Protocol, Article 71.
83. See ICRC Customary Law Study, above note 20, pp. 105–111.
84. Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel, November 8, 2005, UN Doc. No. A/C.6/60/L.11 (2005).
85. It also includes “peace building” missions.
86. “peace building”., Article 2(3).
87. “peace building”.
88. See Nuclear Assistance Convention, above note 47, Article 3(b);
89. Framework Convention, above note 49, Article 4(a)(5);
90. Tampere Convention, above note 44, Article 5(3).
91. See, e.g., Inter-American Convention, above note 55, Article 4(c);
92. ASEAN Agreement, above note 55, Article 12(2);
93. see also Council of the European Communities Resolution, “Improving mutual aid between Member States in the event of a natural or technological disaster”, OJ C 198, 27 July 1991, at 1, para. 4.
94. See, e.g., Tampere Convention, above note 44;
95. ASEAN Agreement, above note 55.
96. Inter-Agency Standing Committee, Guidelines on the Use of Military and Civil Defence Assets to Support United Nations Humanitarian Activities in Complex Emergencies, 2003, para. 18. A set of guidelines for civil-military relations, known as the “Oslo Guidelines” has also been developed by states and humanitarian actors for disaster situations. See Guidelines on the Use of Military and Civil Defense Assets in Disaster Relief, as updated in 2004. However, the Oslo Guidelines are intended for regulating the direct use of international militaries in relief operations and do not address the issue of armed escorts. ASEAN Agreement., para. 43.
97. See International Federation of Red Cross and Red Crescent Societies, Legal Issues in the International Response to the Tsunami in Thailand (2006) (hereinafter IFRC Thailand Report), at pp. 13–14.
98. See Refugees International, above note 72.
99. See IFRC Thailand Report, above note 108, at 14; Human Rights Watch press release, “Sudan: continuing blockade of humanitarian aid”, 4 April 2006.
100. See IFRC Thailand Report, above note 108, at 19.
101. See Refugees International, above note 72.
102. See International Federation of Red Cross and Red Crescent Societies, Report of the European Forum on International Disaster Response Laws, Rules and Principles, Antalya, Turkey, 25–6 May 2006, p. 4.
103. Convention on the Privileges and Immunities of the United Nations, above note 84.
104. Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, 33 UNTS 261.
105. See IFRC Thailand Report, above note 108, p. 16.
106. IFRC Thailand Report.
107. See Anne Richard, “Role reversal: offers of help from other countries in response to Hurricane Katrina”, Center for Transatlantic Relations, 2006, p. 20.
108. See International Federation of Red Cross and Red Crescent Societies, IDRL Asia-Pacific Study-Nepal Laws, Policies Planning and Practices on International Disaster Response, 2005, p. 28.
109. See Richard, above note 118, p. 20.
110. See, e.g., Peter Goodman, “For tsunami survivors, a touch of Scientology”, Washington Post, 28 January 2005;
111. International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2005: Focus on information in disasters, 2005, p. 93.
112. See, e.g., First Geneva Convention, Articles 24–26;
113. Fourth Geneva Convention, Articles 17, 56;
114. First Additional Protocol, Articles 8(c) (specifically defining the term “medical personnel” in these terms) and 15; ICRC Customary Law Study, above note 20, pp. 81–3 (concerning the definition of medical personnel), and Vol. II, pp. 453–6 (compiling citations to the Geneva Conventions of 1864, 1906 and 1929).
115. See ICRC AP Commentary, above note 19, p. 833.
116. See, e.g., Tom Wright, “Tax snarls relief for Aceh”, Wall Street Journal, 19 January 2007.
117. See, e.g., Transparency International, “Mapping the Risks of Corruption in Humanitarian Action” (July 2006), pp. 22–3;
118. “Aid blocked as the Taliban demand “tax””, Daily Telegraph, 12 October 2001.
119. Humanitarian Policy Group, “The Agreement on Ground Rules in South Sudan”, Study 3 in The Politics of Principle: The Principles of Humanitarian Action in Practice, March 2000, p. 55.
120. See Mario Bettati, “Protection for non-governmental organizations on hazardous duties: reports of the results of a UIA survey”, Transnational Associations/Associations transnationales, Vol. 3 (1999), pp. 118-132.
121. See, e.g., Convention on the Privileges and Immunities of the United Nations, above note 84, s. 7.
122. See, e.g., Fourth Geneva Convention, Article 60
123. and First Additional Protocol, Article 70(3).
124. See, e.g., Agreement between the Government of the United States of America and the Government of the Republic of Belarus Regarding Cooperation to Facilitate the Provision of Assistance, June 18, 1996, Article 1, available at http://www.ifrc.org/idrl (last visited 3 July 2007).
125. Nuclear Assistance Convention, above note 47, Article 8.
126. Tampere Convention, above note 44, Article 5.
127. Overseas Development Institute, Joint Evaluation of Emergency Assistance to Rwanda: Study III - Principal Findings and Recommendations, June 1996, pp, 18–21.
128. Joint Evaluation of Emergency Assistance to Rwanda: Study III - Principal Findings and Recommendations., p. 23.
129. See TEC Synthesis Report, above note 76, pp. 52–57.
130. See International Federation of Red Cross and Red Crescent Societies, Operations Review of the Red Cross Red Crescent Movement Response to the Earthquake in Bam, Iran, 2004, p. 34.
131. See, e.g., Fourth Geneva Convention, Article 23;
132. First Additional Protocol, Article 69.
133. See Second Additional Protocol, Article 18(2);
134. see also the similar language in First Additional Protocol, Article 70(1).
135. Sphere Project Humanitarian Charter and Minimum Standards in Disaster Response, 2004 edn, available at http://www.sphereproject.org/ (last visited 3 July 2007).
136. See International Federation of Red Cross and Red Crescent Societies, Legal Issues in the International Response to the Tsunami in Sri Lanka, 2006.
137. See Anuj Chopra, “Aid workers in Sri Lanka face escalating risk and red tape”, Christian Science Monitor, 27 September 2006.
138. See Pakistan, “India agrees to open disputed Kashmir border”, International Herald Tribune, 30 October 2005.
139. See International Federation of Red Cross and Red Crescent Societies, Legal Issues in the International Response to the Tsunami in Indonesia (publication pending) (hereinafter IFRC Indonesia Report), pp. 7–8.
140. See, e.g., Zeeshan Haider, “India delays border crossing as disease spreads”, Reuters, 10 November 2005;
141. Nilofar Suhrawardy, “Angry survivors slam delay in opening Kashmir border”, Arab News, 26 October 2005.
142. See IFRC Indonesia Report, above note 149, pp. 7–8;
143. International Crisis Group, Aceh: A New Chance for Peace, Asia Briefing No. 40, 15 August 2005, p. 4.
144. See Fourth Geneva Convention Article 59;
145. First Additional Protocol, Article70;
146. Second Additional Protocol, Article 18;
147. see also ICRC Customary Law Study, above note 20, p. 193. An examination of the travaux préparatoires for the above-cited provisions indicates that the issue of the causation of humanitarian need was not raised in negotiating the texts.
148. As noted in the ICRC commentary to Article 55 of the Fourth Geneva Convention (concerning an occupying power's duty to provide food and supplies to civilians), the article “represents a happy return to the traditional idea of the law of war, according to which belligerents sought to destroy the power of the enemy State, and not individuals”. ICRC GC IV Commentary, above note 17, pp. 309–310.
149. See TEC Synthesis Report, above note 76, p. 115;
150. see also United Nations Secretary-General's Special Envoy for Tsunami Recovery, William J. Clinton, Lessons Learned from Tsunami Recovery: Key Propositions for Building Back Better, 2006, p. 8 (“Preparedness is not just about relief response, but also requires predetermined ways of working together with a range of stakeholders in rebuilding houses and schools, restoring income streams, training workers to participate in reconstruction, and activating procedures to allow materiel to clear ports and customs quickly… The development of legal frameworks at the national and international levels to facilitate preparedness and response is fundamental”).
151. See, e.g., IFRC Sri Lanka Report, above note 68, pp. 32–3 (noting that Sri Lanka adopted Sphere standards for reconstruction after the tsunami).
152. See David Fidler, “Disaster relief and governance after the Indian Ocean tsunami: what role for international law?”, Melbourne Journal of International Law, Vol. 6 (May 2005), p. 458. It should be noted, however, that the International Law Commission has decided to take this issue into its programme of work and it is possible that this could lead to further development at the global level. See Report of the International Law Commission, 58th Sess. (1 May-9 June and 3 July-11 August 2006), UN Doc. No. A/61/10 (2006), p. 464. See also International Law Commission Daily Bulletin, 59th Session, United Nations Office at Geneva, 1 June 2007 (noting that “The Commission decided to appoint Mr Valencia Ospina as Special Rapporteur for the topic “Protection of persons in the event of disasters””).